Vermont Rail, Shelburne and the Role of the State Legislator

Members of Vermont United recently asked that Representative Lenes and I take a more vocal role in opposing the Vermont Railway (VRS) intermodal facility slated for development in Shelburne. I am responding here.

It is frustrating to find that there is relatively little that we can do legislatively. It is certainly frustrating for our community to see how easily our local planning and approval process is powerless in the face of the preemptive powers of federal law.

Members of our community have put forth a valiant effort to stop or at least influence the project using both the court of law and the court of public opinion.

Through the court of law, the Town of Shelburne is seeking to determine whether federal law preempts local and state law here as the owners assert, or must conform to local and state law, as the town believes. Through the court of public opinion, the Vermont United group is seeking to stop the project altogether, creating social media connections and engaging our youth in public debate and participation around issues for which they care deeply. A ruling in federal court is due next month. The actual influence of the court of public opinion is unknown at this time.

Since the project came to light in January, Representative Lenes and I both believed that our highest and best use would be working out of the spotlight and behind the scenes. Representative Lenes took an active role in helping to negotiate the opening of the railroad station parking lot. I organized a legislative hearing in February to help determine what we could do, what we should do and what roles we might, or might not play in the process. I gave a recording of that hearing to the Town, to VRS and the Shelburne News.

We support the Town in its efforts to require VRS to prove federal preemption. Our research has led us to believe that a full win in court is probably a long shot, however our opinion here is irrelevant to the judge and has no impact on proceedings. The Town and VRS may well find a way to settle out of court and we are appropriately not involved in any way in those deliberations. If VRS prevails and federal law controls, the project will still need to meet requirements for two federal Clean Water Act permits and one state permit. Because Vermont has delegated authority to administer this federal law, the State ultimately issues and oversees all three permits.

Representative Lenes and I have been working with the Agency on Transportation and the Department of Environmental Conservation to identify specific areas where Vermont law requires greater environmental protection or road safety. To that end, we were able to identify additional stormwater. river corridor, buffer and wetland protections that go beyond the federal Clean Water Act. Although we believed we had begun a productive dialog with VRS to address some of these issues, we learned that members of the Vermont United advocates found our efforts counterproductive to their goals. Out of respect for this large group and for our town officials with more direct influence, we have pulled back.

Because the laws we develop in Montpelier are prospective and not retroactive, there is little we can do on a legislative level to affect change in the Shelburne facility. We are, however looking at where breakdown occurred in this process and working to make changes in law that might help in the future. These include the following: 1) draft of a joint resolution asking Congress to afford more local input for freight-related development; 2) increase the time for permit public notice; 3) require notice to the Commissioner when harvesting more than 10,000 board feet or 20 cords of wood; 4) identify and protect critical habitat for threatened and endangered species. All of these amendments are actively moving through the legislative process and may well be signed into law this year.

I support Vermont United in its efforts to protest including any efforts to breathe life back into negotiating for the alternate site. I recognize that this role is not enough for some. It is, however, the role I have found where I am most effective in the work I do: working quietly, doggedly behind the scenes to influence events and bring people together to solve tough problems.